Far Will the Law Take Us? Understanding Law and Sexual Violence in the Context of 16 December Rape Protests in India

October 2, 2014

After the 16 December, 2012 gang rape case in Delhi there were protests, campaigns, and movements seeking legal reforms to the rape laws of India. Nevertheless, this opens the debate over whether legal reform is enough to establish a just society for women. This paper explores the various questions which the women’s movement in India has dealt with in regard to the law and on the recent amendments in the rape laws in the Indian Penal Code, and delineates their efficacy or inefficacy for political struggles. The role of women in society is analysed in the context of capitalism, class society, patriarchal structures, and neoliberalism. The paper then considers the limited acceptance of the Justice Verma Committee recommendations to the Criminal Law Act, 2013 regarding sexual violence. The author concludes that the legal reforms are not enough to challenge patriarchal notions of sexual violence and a change is needed in class relations.

The 16 December, 2012 gang rape case in Delhi1, and the surrounding flurry of protests and campaigns largely pitched on legal terms have once again opened the long standing debate among feminists and other stakeholders as to the efficacy of transformatory politics pursued through state law. While on the one hand, the mass movement, which was largely comprised of the youth (mostly students from various colleges in Delhi, youth organisations, independent, et al), communicated their discontent and demands in a retributive and counter-productive legalese («hang the rapists», «you rape, we chop», etc.), on the other hand, there were various other strands which sought to offer a comparatively nuanced (though limiting) analysis of gender violence and oppression (popular campaigns like «bekhauf azadi»2 by All India Students’ Association3). The latter was then criticised by others for its middle class appeal and lack of understanding of appropriation of both patriarchal structures and liberal feminist discourses by the wide ranging seepage of neoliberal capital by positing that class doesn’t merely intersect gender at some points but structures the very field on which it is constituted.

1. A 23 year old woman was gang raped and brutally assaulted by 5 men in a moving bus in Delhi on 16 December, 2012. The woman died thirteen days after her treatment in the hospital. The incident led to mass protests where the protestors clashed with security forces of the government in the capital region, apart from various other modes of agitation, and spread to rest of the country. Excluding one of the accused who was a juvenile, the other four were sentenced to death penalty on September, 2013 by a fast track court.

2. Translated as «fearless freedom» in English.

3. A left students’ organization associated with the Communist Party of India- Liberation.

However, the question as to how far the law can take us if we seek to establish a just society has come up again and again even in these analysis. At the same time, with pressure from protesters, and especially from various women groups, changes have been made in the rape laws. Of significance here are the recommendations of the Justice Verma Committee with largely progressive content, which, however, were conveniently cropped off to pass the Criminal Law (Amendment) Act, 2013. This moment is reflective of much of the Indian Women’s Movement, which has repeatedly questioned the possibility of transformatory politics pursued through law, while continually pushing for legal reforms. The women’s movement in India, while continually pushing for legal reforms. The women’s movement in India, particularly from the 1970s to the 1990s, has reacted against certain instances of sexual violence against women by demanding legislative action, and had creditably done so, but theirs has been a frustrating engagement with the law, as the implementation of the proposed changes has not only been partial and conformist but it has led to stringent punishments and hence fewer convictions, and a subsequent non-drastic change in the structural inequalities that exist within society. At the same time, the domain of engagement with law has always remained a contested site as even while realising the inherently limited nature of the legal frameworks, one can’t completely bypass it as not possessing any potential to sharpen political activism at various moments and as a key space which transforms the trajectory of political struggles.

This paper largely seeks to gain clarity on the various questions which the women’s movement in India has dealt with in regard to the law and on the recent amendments in the rape laws in the Indian Penal Code, and delineate their efficacy or inefficacy for political struggles. However, before we go there it seems imperative to understand how gender inequalities and the subsequent subjugation of one gender by the other is not just an isolated case of «mentality» or «Asian attitude» (as a lot of international media has projected after the December protests) but historically has a strong structural and material base. It is, in fact, a consequence of the emergence of class society. As Friedrich Engels postulates in his The Origin of the Family, Private Property and State, the institutionalised oppression of women commences with the emergence of surplus production (mostly in agriculture) and the desire to retain it. Subsequently, monogamous marriages and family developed as a means through which the sexuality of the woman was restricted and the accumulated private property could be passed to the rightful heir. The woman became a commodity of the husband, family or community whose honour was to be protected and upheld at all costs. So rape, which comes from a French verb «raper» that means «to steal» and which in hindi is known as to«izzat lootna»4, connotes that an assault on a woman is an assault on the much cherished honour of the husband, brother, father or community. Hence through the ages, a certain moral code has prevailed which codifies sexuality in a strictly rigid way and which has penetrated through state apparatuses like the military, judiciary and executive. Therefore, in most trials of sexual assault, the onus is on the woman to prove her innocence: that she did not consent, that she offered resistance. For instance, in the now historic Mathura rape case, a tribal girl named Mathura, who was raped by two policemen on the compound of the Desai Ganj Police Station in Chandrapur district of Maharashtra5, the Supreme Court acquitted the accused on the pretext that she had not raised enough cries, as her father and brother couldn’t hear her «resistance calls» from outside the police station. Subsequently, there were countrywide protests by women organisations, students, law activists, et al, who demanded that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent as a rebuttable presumption. However, the Criminal Law Amendment Act which was passed in 1983 catered to this demand only partially (i.e. in the case of custodial rape alone). New laws were also enacted following the agitation. Even though these legal reforms were seen as an achievement by the women’s movement, we still continue to see how the sexual assault victim is doubly victimised in the court space where she has to directly or indirectly prove that she adheres to a certain codified moral standard set up for a «respectable» woman in society. The different trajectories of male and female sexuality can be attributed to the way economic structures have transformed through the ages by fading the productive roles of women and overstressing their reproductive roles and creating a separation between the two. It is this separation which makes it appear that feminised housework, care work, etc. is somehow excluded from the rule of capital, while it is this housework which produces labour-power, on which capitalism runs.

The state which comes up with class society seeks to maintain such segmentation within the working class. While capitalism has subsumed increasingly more women into the productive sphere with the ascent of neoliberalism, it continues to sustain the reproductive sphere of marriage and family and the related moral codes. The sustenance of the importance given to the reproductive sphere has continually created an image of women as sexual objects meant to satisfy the sexual desires of males. This has been augmented by the increasing commodification of women in the media and entertainment industry which portray women as objects to seduce men (and society) to consume more and more. Such a conditioning of male and female sexuality helps the class society to maintain its rule by undervaluing the role of women in reproducing labour power.

Sexual violence which occurs in routinized form within families in the form of wife beating, marital rape, rape by relatives, or outside in a more visible manner, has then to be seen as a cause of the construction of sexuality in a particular way. At the same time, sexual violence has been used as a tool to maintain class, caste and ethnic hierarchies. This is visible in certain villages in the country which still retain the right of the landlord to sleep with new brides. Low caste and poor women continue to be sexually assaulted by men of upper castes. Women in Kashmir, north-eastern India and other insurgent areas are raped by state agents with impunity.

Since the state comes up with class society and seeks to maintain the various segmentations within the revolutionary working class, the law, which is posited by the state as something above the society, works in the final analysis to protect the existing power relations. For instance, it might punish the perpetrators of sexual crimes in certain cases, but it legitimises the oppression faced by a woman at her reproductive site (housework, marital rape). This is not to say that sexual assault outside the home is taken lightly. For instance, rape is considered a criminal offence (i.e. an offence against the state). This means that the victim would be represented by the state and becomes a mere witness in her own case. Though meant to signify the welfarist nature of the state, it ultimately hampers the case as there is laziness and apathy (apart from patriarchal biases) among the police and other state representatives, while the defence lawyer remains motivated with high fees.

Now let us examine the various other limitations within the legal framework which make sure that there is no drastic change in the way society is structured. Section 375 of the Indian Penal Code defines rape as sexual intercourse between a man and a woman against her will or without her consent. This definition which overtly stresses penis penetration as the primary component of sexual assault continues to be governed by the logic that husbands/fathers alone have the control over the sexuality of the concerned woman, and rape violates or steals these property rights which is connected to the threat of the illegitimate heir and hence an assault on the class/caste stratifications. At the same time, such a definition which works within the binary logic of law (i.e. fixing of meanings into rigid and codified binary categories of truth/ untruth, guilt/innocence, consent/ non-consent, etc.) leaves little space for understanding the complexity involved in sexual violence. For instance, it is highly possible that consensual sex might at some point become forced, in which case the law would be quick to point fingers at the woman who gave the «wrong signals». Secondly, in an act like sex, which usually doesn’t involve any eyewitnesses, it is highly difficult to produce objective evidence that the victim had resisted and hadn’t consented. The whole trial becomes almost pornographic, creating situations of humiliation for the victim again and again.

Thirty years after the changes in rape laws were implemented in 1983 following the Mathura case, we see another round of legal intervention post the 16 December rape protests. In this regard, the Justice Verma Committee report, which considered 80,000 suggestions from women groups, academics, lawyer activists, etc., is laudable as it is comprehensive in its sweep to locate sexual violence in the deep seated patriarchal structures of Indian society. Its key recommendations were:

Non-penetrative forms be recognised as sexual assault and the onus should be on the accused to prove that the consent was obtained.

Marital rape be seen as an offence.

Banning of the two-finger test, which is a medical test in which two fingers are inserted inside the vagina of the victim to ascertain her sexual history.

A review of the impunity implicated in the Armed Forces Special Powers Act (AFSPA).

The maximum punishment be life imprisonment instead of the death penalty.

Provision of health and other facilities to victims of sexual assault.

However, the Criminal Law (Amendment) Act, 2013 that was passed in February 2013, was a highly partial acceptance of the recommendations made by the Justice Verma Committee, as marital rape, which is a phenomenon that is embedded within the sacrosanct nature of marriage (a product of class society), still remains excluded from the purview of rape laws. Similarly AFSPA, which ensures impunity for any violence committed by state representatives, has still not been amended. The act which was passed perpetuates a culture of violence against the perpetrators of rape by awarding death penalty in the «rarest of rare» cases. What defines or what determines the magnitude of rarity is still left undefined, legitimizing an alarming culture of satisfying «public conscience» in dealing with violence generated and perpetuated by socio-economic reasons.

The act, ultimately, does not reflect the spirit of the JVC at all when it comes to challenging the patriarchal notions entrenched in our laws and policies. This confirms our understanding that bourgeois law will only go so far as long as the basic terrain on which the various inequalities are structured remains untouched, and unless there is a revolutionary change in the class relations which create and appropriate patriarchy, sexual violence will continue, even if legal reforms make us believe otherwise.